by David M. Reutter

On February 8, 2022, the U.S. Court of Appeals for the Seventh Circuit denied a petition for the full court to rehear en banc a decision by a three-judge panel three months earlier vacating a lower court’s $8 million award to an Illinois prisoner against private prison healthcare contractor Wexford Health Sources for deliberate indifference to his serious medical needs. See: Dean v. Wexford Health Sources, 2022 U.S. App. LEXIS 3506 (7th Cir.).

That ruling left standing the Court’s decision reached on November 10, 2021, remanding a case in which the federal court for the Central District of Illinois awarded nearly $8 million in damages to the prisoner, William Dean.

After his incarceration at Illinois’ Taylorville Correctional Center in 2012, Dean suffered serious medical issues including heart disease, diabetes, and a history of kidney stones before he began seeing blood in his urine in December 2015.

It was immediately suspected that he had cancer, but he did not have surgery until July 2016. By that point the kidney cancer had metastasized and spread, leaving him with liver cancer. After Dean sued, a jury awarded him $1 million in compensatory damages in December 2019, along with $10 million in punitive damages, which the district court then reduced to $7 million in September 2020. [See: PLN. Nov. 2021, p. 58.]

Wexford appealed, arguing the district court improperly allowed two reports into evidence concerning its collegial review, arguing as well that Dean failed to prove the firm had municipal liability under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).

At trial in the district court, Dean had introduced two reports filed in 2014 and 2018 in an earlier case, Lippert v. Godinez, USDC (N.D. Ill.), Case No. 10-cv-04063, a class-action against the Illinois Department of Corrections (DOC) and Wexford alleging systematic deficiencies in medical care at state prisons. The reports were introduced to show Wexford was on notice that its collegial review caused constitutional violations.

The district court found “the evidence allowed a reasonable inference that Wexford’s practices were a moving force behind the delays” in Dean’s treatment “and that Wexford knew that its practices would lead to inexplicable delays for an urgently needed diagnosis and treatment of life-threatening conditions,” an inference it ruled “would have been reasonable with or without the admission of the Lippert reports.”

On appeal, the Eighth Circuit disagreed. It said the 2018 Lippert report was improperly admitted because it concerned events that occurred after the events relevant to Dean’s situation in 2015 and 2016. Thus, it gave Wexford no notice of anything. As to the 2014 Lippert report, the Court did not decide whether the district court erred in admitting it because Dean “failed to prove that Wexford was deliberately indifferent with or without” it.

More to the point, the Court said that Dean’s argument against Wexford’s “collegial review” policy failed to pin municipal liability on the firm under Monnell v. Department of Social Services, 436 U.S. 658 (1978). The policy—delaying treatment by one physician while another revies the case—is not unconstitutional on its face, the Court noted, citing Howell v. Wexford Health Sources, Inc., 987 F.3d 647 (7th Cir. 2021). But Dean’s theory that the policy caused unconstitutional delays for him required evidence of a pattern of similar constitutional violations, per Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397 (1997).

Dean, however, failed to marshal “substantive evidence that collegial review had caused unconstitutional delays for other prisoners,” the Court found. “He only offered substantive evidence of collegial review causing unconstitutional delays in his own healthcare.”

As such, Dean’s Monnell claim against Wexford failed for a lack of evidence. Therefore, judgement in his favor on his Eighth Amendment claim was reversed, and the case was remanded for a new trial on damages for the negligence-based claims. Dean was represented by Chicago attorneys Michael Linden of Jenner & Block LLP, along with Craig C. Martin, Chloe E. Holt and Christopher M. Walling of Willkie Farr & Gallagher LLP, Chicago, IL. See: Dean v. Wexford Health Sources, Inc., 18 F.4th 214 (U.S. 7th Cir.).

The case has now returned to the district court, and PLN will report developments as they become available. See: Dean v. Wexford Health Sources, USDC (C.D. Ill.), Case No. 3:17-cv-03112.

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